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PHL273H1 Lecture Notes - Positive Liberty, Negative Liberty, Positive Force

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Sophia Moreau

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, 2011
1.) Mackinnon + Feminism Dilemma
- Dilemma of Feminist Theory
- The law works to legitimate male power
- 4 examples of this
2.) Lavallee case
- Facts + issues in the case
- The two requirements for self defense
- Popular myths about these and Justice Wilson’s approach
Liberals tend to emphasize how the law works towards fundamentally neutral rights.
“The reasonable person” is mentioned. Mackinnon feels like notions such as “the
reasonable person” have been used in ways that are not neutral and prevent women from
being seen as equal.
The leftist critique of the state recognizes the problem of this neutrality but thinks of
law as a legitimating ideology. If all law is a tool of dominance and repression, there is
no way it can be reclaimed for women.
Is it possible to recognize the ways in which law has been used to legitimate male
power, yet reclaim the law as a positive force for women’s betterment?
The law works to legitimate male power
Gender is a social system that divides power. Refer to pg. 263 and 261.
The law makes it difficult to see and change many social inequalities. Mackinnon gives
four examples of how the state undermines inequality in a bid to push for neutrality. The
first example refers to the constitution (America). Only if the state has done something
then can the law offer a remedy. In Canada under the charter, you can only bring your
charter issue only if there are any judicial bodies involved. The second example involves
the prioritization in the law of negative freedom over positive freedom. Philosophers
have tried to distinguish btw types of freedom. Negative freedom deals with freedom
from interference e.g. others cannot affect your intentions. Positive freedom tends to
involve the freedom in doing things that one thinks are valuable e.g. freedom to achieve
your goals. In order to have positive freedom, one may need assistance from others or the
state. Mackinnon’s point here is that if a govt does this, it will be leaving certain citizens
like women from complete freedom. Women who lack opportunities will not benefit
from negative freedom. This will prevent them from being on equal with the dominant
groups in society.
Maternalistic labour laws are mentioned on 265 of the textbook. The cases involved:
Muller case and the West Coast hotel case.
The fourth example is conditions that pertain to men on sex under the law pertain to
women as well. Mackinnon notes that men can refuse sex or exit relationships due to
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